On college campuses, Title IX transforms response to rape — but not without critics

Students at Dickinson College in Carlisle, Pa., march across the campus demanding the school deal more harshly with students who commit sexual offenses. Students staged a sit-in at the school Wednesday as part of a protest in support of more transparent policies on sexual violence.

Elaine Thompson | AP

Kristina Ponischil sits on the steps on the campus of the University of Washington in Seattle, where she works as a researcher.

Ann Arbor Miller | AP

Caleb Warner, a former University of North Dakota student, had his college career was cut short after being falsely accused of sexual assault about two years ago.

By Justin Pope, The Associated Press

Posted April 21, 2012, at 4:21 p.m.

For months after Kristina Ponischil was raped at a party in her off-campus apartment, her life at Western Washington University was hell.

Police wouldn’t act, as often happens in college towns with “he said, she said” accounts of alcohol-influenced student encounters behind closed doors. Despite a restraining order, she kept running into her assailant on campus, prompting panic attacks.

Once, the man who’d raped her brushed up against Ponischil in the bookstore, then smirked.

“I was just constantly worried that I would run into him again,” Ponischil said.

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But if the criminal justice system let Ponischil down, Western Washington did not. When she finally told an administrator what happened, the school sprang to action, offering her the support she needed. Perhaps most importantly, the campus judicial system, using a lower standard of proof than criminal courts, suspended her assailant, removing him from campus until she graduated in 2009.

“I was able to start healing,” she said. “When I was constantly afraid, there was no healing. It was just constant fear.”

The college’s response wasn’t just a moral obligation; it was also a legal one.

June marks the 40th anniversary of Title IX, the federal gender-equity law that has made headlines mostly on the sports pages. But over the last decade or so, through a series of court rulings and more recently controversial guidance published by Obama administration, Title IX has shifted onto a different patch of contentious terrain — sexual assault on college campuses. It is transforming how colleges must respond to allegations of sexual violence.

The reasoning: Title IX’s key language, running barely 30 words, forbids sex-based discrimination that denies access to educational opportunity. It’s long established that sexual discrimination and harassment can create an atmosphere that denies women their right to education. What’s newer is applying the logic to even a single episode of sexual assault.

Typically, colleges enjoy wide leeway in responding to student misconduct, whether that means using a disciplinary board to enforce their own rules or simply punting the matter to law enforcement. But as Title IX is now interpreted — and would be reinforced under a new version of the Violence Against Women Act awaiting a Senate vote — colleges must respond if a sexual assault is reported, even if prosecutors refuse to get involved. Moreover, they face often precise instructions from the government for conducting their investigations and proceedings, and even the standard of proof to use.

Victims’ advocates welcome what they call an overdue push for colleges to take seriously a problem they’ve long swept under the rug. The latest Title IX guidance also requires colleges to train staff, and develop and publicize policies to help sexual assault victims, or risk large legal judgments. And they must remediate the harm to victims, for instance by providing counseling.

More broadly, these advocates contend Title IX is also reframing the entire discussion about sexual violence on campus, away from blaming victims and toward the big issue at stake: their right to an education.

But Title IX’s expanding role in campus sexual assault cases has proved contentious, on a variety of fronts, even among victims’ advocates.

Some argue channeling sexual assaults to campus proceedings lets the criminal justice system off the hook. Others argue the problem is colleges can’t or won’t hand down tough punishments. Still others oppose some of what the government now requires of colleges. For instance, schools may be required to pursue a case even if the victim wants to drop it, and they cannot offer absolute promises victims’ anonymity will be protected.

Virtually all college administrators agree it would be wrong to ignore sexual assault reports, but some feel unequipped to handle such cases. Regardless, they face suits from both sides — under Title IX for failing to act forcefully enough to ensure their campuses are safe for women, and by accused assailants claiming they were treated unfairly.

But the most vigorous criticism has come from civil libertarians, who argue the Obama administration’s guidance undermines the rights of the accused. They’ve focused on the requirement that colleges use a “preponderance of evidence” standard in such cases — essentially a belief guilt is more likely than not, and a much lower standard than defendants enjoy in criminal court.

Illustrating the dangers, they say, are cases like that of a former North Dakota college student who was found responsible for sexually assaulting a fellow student by a campus disciplinary board. Later, police investigating the incident cleared him and brought false-reporting charges against his accuser. Still, he struggled to clear his name and has yet to return to school.

Title IX, these critics claim, is a blunt legal weapon for addressing sexual assault on campus. They too see a threat to access to education — but for the accused.

The data

Studies vary in their findings of how common sexual assault is at American colleges. None, however, paint a reassuring picture. An often-cited 2007 study estimated one in five college women were victims of an attempted or completed sexual assault. A national telephone survey estimated 20 to 25 percent of women would experience a completed or attempted rape in college.

A 2003 Justice Department study of violent crime calculated a lower rate: about six college women per 1,000 per year, or roughly 3 percent overall during a college career.

“It’s disgusting how much this goes on and how unaware people are of it,” said Susannah Johnson, a freshman at Wheaton College outside Boston, whose account of being raped by a former boyfriend on campus last year went viral, prompting nearly 200 e-mails to her from women at other area colleges sharing their own stories.

Fewer than 5 percent of attempted or completed rapes are reported to law enforcement or campus authorities. That endangers others, because most campus rapes are committed by serial offenders (though usually not strangers).

Last April, the Department of Education’s Office for Civil Rights (OCR) sent colleges a “Dear Colleague” letter, explaining its interpretation of Title IX and outlining the steps it believes colleges must take in response to sexual assault on campus. The 19-page letter carries over from past guidance that has been in force since the Clinton administration. But it was the first such guidance to address directly how Title IX applies to sexual violence, not just harassment.

The letter reminds colleges they must provide “due process” for the accused, such as giving both complainant and accused timely access to relevant information. But the focus is protections for the accuser. Schools must act promptly to investigate, not waiting for a criminal case to proceed. If necessary, they must take interim steps to protect the complainant before a verdict is reached, such as separating the accused and accuser in classes and dorms. In such cases, the burden of inconvenience should fall on the accused.

They also must offer immediate support to victims, and ensure cases are resolved before perpetrators graduate. Historically, some advocates say, colleges trying to avoid messy cases have simply “run out the clock.” That’s no longer an option.

The case for these strong measures lies with women like 24-year-old Ally Clendineng, who contends she was driven away from Northern Iowa Area Community College by a 2006 rape and the college’s inadequate response. Clendineng was fumbling for her keys after an evening out with friends when a guy she vaguely knew let her into a dormitory. He’d been drinking, and she brushed him off, but he followed her to her door. For reasons she says she can’t explain, she agreed to hang out with him in his room for a few minutes. She sat on his bed, and soon he lay down beside her and pulled her toward him.

“I remember at one point, he was like, ‘This would be so much easier if you’d help me out here.'” A resident adviser took her to the hospital, but when she talked to police she couldn’t remember the order of events. Police filed preliminary charges, but they were dropped.

On campus, she says, a dean told her the assailant had rights, too. He was told to stay away from her, but she encountered him almost daily.

“It made me unable to focus, to concentrate on anything other than making sure nothing like that ever happened again,” she said.

Clendineng began abusing painkillers and her schoolwork fell apart. Eventually, she dropped out. She’s now trying to finish a degree online.

“I should have been able to finish school long before now,” she said. She believes she could have “had there been more support from the school, had they done more to tell him to stay away, had the dean not essentially blamed me for it happening.”

A NIACC spokeswoman, Michele Appelgate (CQ), provided with a summary of Clendineng’s account, said it did not accurately reflect the college’s response in that case. She also provided a statement from president Debra Derr describing a series of changes and improvements, made under new leadership four years ago, to the college’s sexual assault response policy.

Only recently, Clendineng said, did she become aware Title IX might apply to a case like hers. At the time, she had no idea of her rights or the obligations it places on colleges to act and help victims.

Alison Kiss of the group Security on Campus said it remains all too common that students don’t know their Title IX rights, and for colleges to fail to inform them. The Campus Sexual Violence Elimination (SaVE) Act, currently before the Senate as part of a reauthorization of the Violence Against Women Act, beefs up reporting rules and requires colleges to notify students reporting assaults of those rights.

When colleges do hand down punishments, expulsion is the maximum, and they often fall short of that. Last year, when The Center for Public Integrity examined a federal database with information on 130 colleges, it found only 10 to 25 percent of men found responsible for sexual assault were expelled.

But Kiss says Title IX pressure has prompted many colleges to improve their training and response. That may explain why some schools report more assault complaints coming forward. Last year’s guidance forced colleges to designate Title IX coordinators, and to rewrite and then publicize new policies, showing more students the police aren’t their only option.

Kiss says until prosecutors start taking such cases, colleges must offer victims an alternative (even if prosecutors do act, colleges must pursue their own Title IX investigations).

“Ten years ago very few people understood the connection between Title IX and sexual assault,” said Wendy Murphy, a Boston attorney who has filed numerous complaints against universities over Title IX compliance. Thanks to the latest guidance, “instead of teaching girls to be afraid and if something ever does happen it’s going to be like stealing somebody’s notebook, the conversation that gets taught to new students is this is a civil rights violation and it’s a serious one.”

The other side

Caleb Warner has seen the flip side of Title IX enforcement.

Warner, too, was enmeshed in a “he said, she said” encounter. During finals week in 2009, he says, a fellow University of North Dakota student with whom he’d hooked up before, and been texting with ever since, invited herself over.

They had sex — consensual, he insists — a second time, then again the next morning, after she spent the night. He liked her, but she stopped responding to his calls and texts. He went home for the holidays and let it drop.

But when Warner returned to school, an administrator pulled him from class. He’d been accused of rape, and he would have to face charges in the campus disciplinary system — within 10 days.

What followed, as Warner and his mother describe it, was a “kangaroo court” campus trial where a hostile administrator attacked Warner’s witnesses as just standing up for a fraternity brother. He was found guilty and kicked off campus — and banned from any state school — for at least three years.

Warner is hardly the only student accused of sexual misconduct to claim unfair treatment. But his case took an unusual twist. After his quick campus trial, a Grand Forks police detective began investigating possible criminal charges against Warner. According to a police report, the detective caught Warner’s accuser in a series of lies about the incident and her previous communications with Warner. Multiple witnesses contradicted her story.

Eventually the police brought charges — against her.

Not even in the famous Duke lacrosse case, Warner and others supporting him noted, did law enforcement go so far as to file false reporting charges against an accuser after a rape case collapsed.

Still, for months UND refused to reconsider Warner’s case, arguing the results of the police investigation did not amount to “substantial new information.”

It wasn’t until last October, after a campaign led by Warner’s mother was starting to inspire critical letters from alumni, that the university relented and overturned Warner’s sanctions. A UND official wrote the original decision should stand but the process for allowing him to report new information fell short of the “minimum demands of fundamental fairness.”

Not that Warner plans to return to the school.

“I’m actually a big Bison fan now,” he says, referring to UND’s rivals, North Dakota State. He’s driving a delivery truck for a national shipping company, trying to pay back legal bills to his family, and unsure if he’ll ever return to college.

Warner’s accuser has since left the state; a warrant is open for her arrest. (The Associated Press was unable to locate the woman, and could find no evidence she has withdrawn the accusation. AP’s policy is not to identify alleged sexual assault victims). UND dean of students Cara Halgren declined to comment on Warner’s case but said the school tries to balance the interests of all students.

“There’s no doubt some of these cases are quite complicated,” she said.

It is a fact that some rape allegations are false. How many is hard to say. University of Massachusetts-Boston psychologist David Lisak looked closely at 136 rape allegations reported over 10 years at one unidentified university in the Northeast and concluded 6 percent of allegations proved demonstrably false. That was separate from another 45 percent that did not proceed to prosecution or campus disciplinary action, either for insufficient evidence or because the complaint was withdrawn.

Russlynn Ali, the assistant secretary of education for civil rights, who signed the “Dear Colleague” letter, emphasized OCR’s guidance is intended to protect victims and clarify college administrators’ responsibilities toward them. “It is not intended to trump the rights of the accused,” she said.

But there are some who worry that Title IX rules could force a rush to judgment. Schools must act immediately to protect alleged victims even while the case for discipline takes its course.

Daniel Swinton, director of student conduct and academic integrity at Vanderbilt, says the requirement colleges take interim steps “makes us nervous because you’re starting to sanction or hold someone accountable, at least temporarily, based on an accusation.”

“What if this is near finals, and the student is accused, but there’s not evidence yet he’s guilty? Do you expel them, have them miss the semester?” said Gwendolyn Jordan Dungy, executive director of NASPA, a group for student affairs professionals. What happens “when you want to make a judgment about discipline or removing somebody, you need more evidence, and you really don’t have that luxury of an investigation?”

Another concern: Colleges must offer victims — and not just the accused — the right to appeal an unfavorable decision. It’s a right victims wouldn’t enjoy in criminal courts.

Most controversially, OCR said colleges must judge Title IX cases under a standard of “preponderance of evidence.” That standard, common in civil law cases, means schools must conclude only that there is a 50.1 percent chance the accused is guilty to find him responsible.

Courts have long granted colleges leeway to use lower standards of proof because they are conducting educational proceedings, enforcing college rules, not criminal laws. And in fact, even before the recent guidance, most colleges were already using the standard of “preponderance” to judge sexual assault cases.

Without the preponderance standard, it can be difficult for colleges to remove rapists.

“To get to proof beyond a reasonable doubt, which is the criminal standard, when you have two people who did something behind closed doors where there were no eyewitnesses and probably a lot of alcohol, it’s incredibly hard to prove,” said Brett Sokolow, managing partner of the National Center for Higher Education Risk Management, which advises colleges on Title IX.

Still, until recently, roughly 20-30 percent of colleges, including most elite institutions, maintained a higher burden of proof. Typically they required “clear and convincing” evidence to convict, a standard they felt better protected the rights of the accused.

The OCR letter prompted virtually all such colleges to scrap that standard and change to preponderance. In one case, at Stanford University, sexual assault proceedings were already underway against a student under a higher standard when the letter came down. Stanford concluded it had to apply preponderance and switched midway through the proceedings. The student was found responsible.

Civil liberties groups, as well as the AAUP, the country’s main faculty union, are alarmed at what they consider a quasi-criminal proceeding that lacks constitutional protections.

Other than a college campus, “there is no other place in America where a body can determine you’re guilty of rape, particularly a body that is run by the government, based on a more-likely-than-not standard,” said Robert Shibley, an attorney with FIRE, the Foundation for Individual Rights in Education.

Hans Bader, an attorney who worked at OCR under the Bush administration, says OCR’s guidelines “stack the deck against the accused.” He and other critics contend that OCR is misreading the law. They argue preponderance is an appropriate standard for determining if a college has violated Title IX. But for an individual student, a higher standard should be required — or at least allowed.

“You’re talking about effectively convicting somebody and saying they’re a rapist,” said Shibley, who notes such a charge is potentially life-altering now that colleges, reluctant to pass problem students on to other schools, are increasingly affixing disciplinary notes to the transcripts of students they expel, rather than simply letting them walk away. “You take a really huge stigma with you your entire life.”

The preponderance standard amounts “to a 50-50 guess on credibility,” he said. “There’s a reason we don’t run our real courts that way, because you can do so much damage to somebody.”

Sherry Warner-Seefeld, Caleb Warner’s mother, says she can understand how those hearing the case, faced with irreconcilable stories and a tearful complainant, might have sided with the accuser’s version of events. “It’s pretty easy to get to 50.1 percent surety in your mind that something might have happened,” she said

But she cannot understand why the process had to be rushed, or how such a guess could be solid enough to devastate her son’s life. She was worried if he were convicted on campus, a criminal case would follow.

“I went to sleep at night worrying that my son was going to be in the Bismarck prison. I had a vision of him in an orange jumpsuit and handcuffs,” she said. “You don’t put somebody in peril of going to prison on a 50.1 percent standard.”

The future for victims

The Campus SaVE Act would solidify victims’ right to appeal unsatisfying verdicts. But language that would have written the preponderance standard into statute, giving it stronger legal footing, was dropped. Even if the bill becomes law, preponderance would remain only the Obama administration’s interpretation of Title IX, which colleges could challenge in court.

With access to federal funding at stake, few would likely cross the administration’s view. But some appear willing to push the preponderance standard requirement. Princeton University will continue to run campus disciplinary proceedings using a “clear and persuasive” standard, while conducting a parallel process in sexual assault cases using the preponderance standard to determine where there’s been a Title IX violation.

In theory, Princeton could clear an accused student of violating campus rules, but still conclude a Title IX violation took place, triggering its requirement to provide support for the victim (while the OCR guidance says colleges may have to take steps to ensure victims are separated from their assailants in classes and dorms, it doesn’t tell colleges how to punish).

Murphy, the Boston attorney, and some other experts criticize that approach and doubt OCR would tolerate it. But Ali, the head of OCR, indicated she wasn’t necessarily opposed to a two-tracked system. She declined to address any particular school, but said OCR was talking with colleges about their concerns and would study them “case by case” — suggesting colleges may have more flexibility than they realize.

Princeton Provost Christopher Eisgruber said the policy is the best way to balance protecting both the Title IX and due process rights of students.

“There are in these kinds of proceedings two different kinds of mistakes that can be made,” he said. “You have to protect against both of them.”